The 14 crosses standing along Utah roads in memory fallen state Highway Patrol troopers are a violation of the U.S. Constitution because they would be conveyed as an endorsement of Christianity by the state, a federal appeals court decided Wednesday.
In its 38-page ruling, a three-judge panel from the 10th U.S. Circuit Court of Appeals in Denver said the 12-foot-high white crosses “would convey to a reasonable observer that the state of Utah is endorsing Christianity.”
"This may lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the UHP (Utah Highway Patrol)," the justices wrote.
In issuing its ruling, the appeals court reversed a 2007 decision by a federal district judge, who said the crosses communicate a secular message about deaths and were not a public endorsement of religion.
First erected in 1998, the memorial crosses have stood on public highway roadsides, near where each of the troopers died in the line of duty, in honor of the sacrifice they each made for their families and the State of Utah.
The cross project was initiated, funded, and constructed by the Utah Highway Patrol Association – a private, secular, non-profit organization representing state troopers and their families.
Two men behind the effort said they selected crosses for the memorials because the image of a cross can simultaneously convey a message of death, remembrance, honor, gratitude and sacrifice.
But American Atheists, an organization dedicated to promoting absolute separation of church and state, challenged the privately-owned memorials, claiming that they violated the constitution because some of the crosses appeared on government land.
In their ruling, the justices agreed and said that while the cross is a widely recognized symbol of death, it delivers a specific Christian message.
"Unlike Christmas, which has been widely embraced as a secular holiday ... there is no evidence in this case that the cross has been widely embraced by non-Christians as a secular symbol of death," they said.
Utah Attorney General Mark Shurtleff, however, said he disagrees with the court and believes that most reasonable people simply see the crosses as death markers.
"When someone driving sees that white cross, what goes through their mind? Someone died here, and not Jesus Christ. The context of the cross on the side of the road, means death," he said, according to The Associated Press. "What else would you put up?"
The Becket Fund for Religious Liberty was also among those who disagreed with Wednesday’s decision. Unlike Shurtleff, however, the Christian legal did acknowledge the crosses as religious symbols.
But it also noted that the Constitution does not require stripping government property of all religious symbols – especially when those symbols are privately owned, privately funded, and privately maintained.
“When the government allows private speech on public property, it cannot discriminate between secular and religious speech and muzzle only the religious,” commented Luke Goodrich, Deputy National Litigation Director for the Becket Fund for Religious Liberty.
“The private use of religious symbols is not the same as government establishment of religion,” added Goodrich.
Though the justices are remanding the case back to the Utah-based federal district judge, who has been ordered to issue a judgment in favor of American Atheists, Goodrich said the case is likely to be appealed to the full Tenth Circuit court and then the Supreme Court.
In the wake of the decision, the Beckett Fund said any privately-erected, religious memorials on government property in the states under the jurisdiction of the 10th Circuit could be vulnerable to a court challenge. The states include Colorado, Kansas, New Mexico, and Oklahoma.